Government Speech Doctrine Expanded

March 17, 2006 | Roger McEowen

In June 2005, the U.S. Supreme Court ruled that the Beef Promotion and Research Act which created the beef check-off was government speech and, as a result, the program could not be challenged constitutionally on First Amendment grounds by those opposed to mandatory program. While the Court’s opinion is highly questionable (even supporters of the check-off always referred to it as a private, self-help program), what is of greatest concern is how far the government speech doctrine could be expanded based on the Court’s opinion. We now may have at least a partial answer to that question based on a federal court opinion in a Tennessee case.

In 2003, the Tennessee legislature passed a law authorizing issuance of a specialty license plate with a “Choose Life” logotype. The plate was designed in consultation with a representative of New Life Resources, with half of the profits from sale of the plates going to New Life Resources, Inc. The law required New Life’s portion of the profits to be used exclusively for counseling and financial assistance, including food, clothing and medical assistance for pregnant women in Tennessee. During legislative consideration of the Act, Planned Parenthood of Tennessee lobbied for an amendment authorizing a pro-choice specialty license plate, but the measure was defeated. Consequently, the ACLU of Tennessee sued challenging the Act as unconstitutional. The trial court agreed and enjoined enforcement of the Act on the basis that the Act involved a mixture of government and private speech and had a discriminatory viewpoint.
Based on the beef check-off case, the appellate court reversed.  Following the rationale of the U.S. Supreme Court in the beef check-off case, the court noted that the “Choose Life” license plate was a government-crafted message where the legislature had retained the right to approve the wording and design of the plate even thought the design and message itself was developed by a private organization. The court reasoned that was just like the structure of the beef check-off where a private organization (the Beef Board) developed the advertisements, but the Secretary of Agriculture retained ultimate veto power over the ads. Also in accordance with the beef case, the court held that dissemination of a government-crafted message by a private organization did not require the views expressed to be neutral.

It will be interesting to see how far the government speech doctrine goes. The beef check-off case may have set in motion a process that not many had thought out clearly while that litigation was winding through the courts. American Civil LibertiesUnion of Tennessee, et al. v. Bredesen, 441 F.3d 370 (6th Cir. 2006) (6th Cir. Mar. 17, 2006)